Citation Nr: 0204852
Decision Date: 05/22/02 Archive Date: 06/03/02
DOCKET NO. 00-14 319A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to a rating in excess of 60 percent for
herniated disc L2-3 with osteoarthritis, lumbar facets, on
appeal since the grant of service connection.
2. Entitlement to a rating in excess of 30 percent for
obsessive compulsive disorder, on appeal since the grant of
service connection
REPRESENTATION
Appellant represented by: Mississippi Division of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. A. Saadat, Counsel
INTRODUCTION
The veteran had active military service from November 1996 to
January 1999.
This case comes to the Board of Veterans' Appeals (Board)
from a September 1999 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi, which granted service connection for herniated
disc L2-3 with osteoarthritis, lumbar facets, and assigned a
20 percent rating effective from January 8, 1999; by the same
rating decision, the RO granted service connection for
specific phobia, situational type, and assigned a 10 percent
rating effective from January 8, 1999.
The veteran testified at the RO before a local hearing
officer in November 2000. By a January 2001 rating decision,
the RO increased the rating for herniated disc L2-3 with
osteoarthritis, lumbar facets, to 60 percent, effective from
January 8, 1999, and increased the rating for the service-
connected psychiatric disability (now redesignated as
obsessive compulsive disorder) to 30 percent, effective from
January 8, 1999.
This case was advanced on the docket because of
administrative error that resulted in significant delay in
docketing the appeal. 38 C.F.R. § 20.900(c) (2001).
FINDINGS OF FACT
1. By a September 1999 rating decision, the RO granted
service connection for herniated disc L2-3 with
osteoarthritis, lumbar facets, and assigned a 20 percent
rating effective from January 8, 1999; by the same rating
decision, the RO granted service connection for specific
phobia, situational type, and assigned a 10 percent rating
effective from January 8, 1999.
2. In July 2000, the veteran perfected his appeals
concerning the ratings assigned for his service-connected
back and psychiatric disabilities.
3. By a January 2001 rating decision, the RO increased the
rating for herniated disc L2-3 with osteoarthritis, lumbar
facets, to 60 percent, effective from January 8, 1999, and
increased the rating for the service-connected psychiatric
disability (now redesignated as obsessive compulsive
disorder) to 30 percent, effective from January 8, 1999.
4. In a written memorandum signed by the veteran, dated in
February 2002, and associated with the claims file in May
2002, the veteran indicated that he wanted to withdraw his
appeals.
5. The veteran's request to withdraw his appeals was
received by the Board prior to the promulgation of a
decision.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of the issue of entitlement
to a rating in excess of 60 percent for herniated disc L2-3
with osteoarthritis, lumbar facets, on appeal since the grant
of service connection, have been met and the veteran's appeal
is dismissed. 38 U.S.C.A. § 7105 (d)(5) (West 1991);
38 C.F.R. §§ 20.202, 20.204 (b),(c) (2001).
2. The criteria for withdrawal of the issue of entitlement
to a rating in excess of 30 percent for obsessive compulsive
disorder, on appeal since the grant of service connection,
have been met and the veteran's appeal is dismissed.
38 U.S.C.A. § 7105 (d)(5) (West 1991); 38 C.F.R. §§ 20.202,
20.204 (b),(c) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
By a September 1999 rating decision, the RO granted service
connection for herniated disc L2-3 with osteoarthritis,
lumbar facets, and assigned a 20 percent rating effective
from January 8, 1999; by the same rating decision, the RO
granted service connection for specific phobia, situational
type, and assigned a 10 percent rating effective from January
8, 1999.
In July 2000, the veteran perfected his appeals concerning
the ratings assigned for his service-connected back and
psychiatric disabilities.
By a January 2001 rating decision, the RO increased the
rating for herniated disc L2-3 with osteoarthritis, lumbar
facets, to 60 percent, effective from January 8, 1999, and
increased the rating for the service-connected psychiatric
disability (now redesignated as obsessive compulsive
disorder) to 30 percent, effective from January 8, 1999.
In a written memorandum associated with the claims file in
February 2002, the veteran requested that his appeals be
withdrawn. On a written statement signed by the veteran,
dated in February 2002 and associated with the claims file on
May 7, 2002, the following words were included: "The veteran
no longer wants to pursue his appeal for evaluation of
herniated disc, L2-3 with osteoarthritis, lumbar facets, and
obsessive compulsive disorder." Under these circumstances,
the Board construes the veteran's signed statement as a
request to withdraw his appeals.
Under applicable criteria, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. 38 U.S.C.A. § 7105(d)(5) (West
1991). A substantive appeal may be withdrawn in writing at
any time prior to the promulgation of a decision by the
Board. 38 C.F.R. §§ 20.202, 20.204(b) (2001). Withdrawal
may be made by the appellant or by his representative, except
that a representative may not withdraw a substantive appeal
that was personally filed by the appellant without the
express written consent of the appellant. 38 C.F.R.
§ 20.204(c) (2001).
In this case, prior to the promulgation of a decision by the
Board, the veteran expressly withdrew his claims on appeal.
As a result of the withdrawal, no
allegations of error of fact or law remain before the Board
for consideration. Consequently, the veteran's appeals are
dismissed without prejudice.
ORDER
The issue concerning entitlement to a rating in excess of 60
percent for herniated disc L2-3 with osteoarthritis, lumbar
facets, on appeal since the grant of service connection, is
dismissed.
The issue concerning entitlement to a rating in excess of 30
percent for obsessive compulsive disorder, on appeal since
the grant of service connection, is dismissed.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.